Why Legislative Control Is Weak

2. The guillotine

Chapters 1020 and 1200. When the days allotted for the Demands expire, the outstanding Demands are put and voted without discussion.

Combine it with rule 270(a), which forbids a departmentally related Standing Committee's report on Demands to "suggest anything of the nature of cut motions", and the position is this: the body that examines a Demand may not propose a reduction, and the body that may propose one need never discuss it.

That pair of facts is the strongest available criticism of financial control, and it needs no statistics.

3. The executive's monopoly of financial initiative

Article 113(3): no demand for a grant shall be made except on the recommendation of the President. Article 113(2): the House may assent, refuse to assent, or assent subject to a reduction.

So the House can say no and cannot say what instead. It cannot increase a Demand, cannot propose one, and cannot move money from one head to another; and article 114(2) forbids any amendment to the Appropriation Bill varying the amount or altering the destination of a grant, the presiding officer's decision being final.

The consequence for the assessment. The House's financial control is a veto, and a veto that cannot be exercised without ending the Government, chapter 1200, is a power held in reserve rather than in use.

4. Committee scrutiny is optional and advisory

Optional: rule 270(b), a committee examines Bills "referred to the Committee by the Chairman or the Speaker", and nothing requires a Bill to be referred.

Advisory: rule 277, the report "shall have persuasive value and shall be treated as considered advice given by the Committee."

Annual: the term of a departmentally related Standing Committee does not exceed one year, chapter 1020, so no committee can pursue a subject as the Public Accounts Committee does.

Chapter 1130 made these three points about the committee system; they belong here as well because they are reasons why LEGISLATIVE CONTROL is weak and not merely why committees are. A House whose only detailed scrutiny is optional, advisory and annual has delegated its examination without securing its result.

5. The ordinance power

Article 123(1): if at any time, except when both Houses are in session, the President is satisfied that circumstances exist rendering it necessary for him to take immediate action, he may promulgate such Ordinances as the circumstances appear to him to require. Article 123(2): an Ordinance shall have the same force and effect as an Act of Parliament. Article 213 makes corresponding provision for a Governor.

Why this belongs in a chapter on the weakness of legislative control. Every device in this label operates on a Bill before the House or a Government answerable to it in session. An ordinance is law made when the House is not sitting, by the executive, with the same force and effect as an Act.

The safeguards exist and should be stated. The power arises only when both Houses are not in session; the Ordinance must be laid before both Houses and ceases to operate at the expiration of six weeks from the reassembly of Parliament, or earlier if resolutions disapproving it are passed; and it may be withdrawn at any time.

And the criticism. The satisfaction is the executive's own, expressed in the words "as the circumstances appear to him to require"; and the device is a standing invitation to legislate first and seek approval afterwards. Chapter 1230's affirmative-resolution procedure is the model of the opposite approach, and the contrast is worth drawing: an affirmative-resolution rule does not operate until the House approves; an ordinance operates until the House disapproves.

What is genuinely strong, and must be said

An answer of five criticisms is a complaint, not an assessment.

Question Hour, chapter 1160: available to every member, daily, reaching the whole administration, and putting the answer on the public record.

The Public Accounts Committee, chapter 1010: the only closed loop in this paper, with the Opposition in the chair.

Audit, chapter 1260: an officer removable only as a Judge of the Supreme Court, reporting to the House.

Pre-vote committee scrutiny since 1993, chapter 1020, which did not exist before.

And the courts, chapters 1080, 1090, 1100 and 1110, which have marked the limits of privilege and given a committee's report a defined standing.

The verdict to close on. Legislative control in India is strong where it operates by exposure and weak where it operates by decision. Every device that ends in a division is settled by the Tenth Schedule before the debate; every device that ends in a record works. That is why the effective instruments in this paper are the question, the committee report, the audit paragraph and the laying requirement, and not the cut motion or the motion of no-confidence.

The reforms that follow

Reference of a Bill to a committee to be the rule, with reasons recorded for dispensing with it.

A statutory action taken procedure extending the Public Accounts Committee's practice to every committee, chapter 1010.

Longer or staggered committee terms, chapter 1130.

More instruments under the affirmative-resolution procedure, chapter 1230, so that inertia kills rather than preserves.

A limit on the guillotine, so that a stated proportion of Demands is discussed.

And professional staff for the committees, chapter 1130.

What no reform can supply. The Tenth Schedule question is a choice between stability and individual responsibility, and it is a political choice rather than a defect to be repaired. Say so; it is more honest than proposing its repeal in a sentence.

A worked example

A Government introduces a Bill and a Budget in the same session.

The Bill is not referred to a committee. Nothing requires reference: rule 270(b). It is passed after a debate in which the majority votes as directed.

A member moves a policy cut on a Demand. It is lost. The Tenth Schedule ensures the division.

The days allotted expire. The remaining Demands are guillotined: put and voted without discussion.

A member wants the Demand for a scheme increased. Article 113(3): only on the recommendation of the President.

Between sessions the Government promulgates an ordinance. Article 123: same force and effect as an Act, until it ceases six weeks after reassembly.

What has actually controlled anything? The questions asked and answered on the record; the committee report, if the Bill was referred; and, a year or two later, the audit paragraph and the Public Accounts Committee's examination of the Secretary.

That is the honest answer: the record worked and the votes did not.

What beginners get wrong

That the weakness is a matter of numbers. It is structural: the Tenth Schedule, the guillotine, article 113(3), rules 270(b) and 277, and articles 123 and 213.

That the Tenth Schedule is simply a defect. It was enacted against defection for money and it stabilises government; the cost is the individual conscience.

That the House can propose to spend more. Article 113(3): no demand except on the President's recommendation.

That an ordinance is a temporary expedient without force. Article 123(2): the same force and effect as an Act of Parliament.

That listing weaknesses is an assessment. Question Hour, the Public Accounts Committee, audit and the courts are the other half.

Quick revision

No figures: this book gives structural reasons, each anchored to a provision or a rule.

1. The Tenth Schedule: disqualification for voting against a party direction without prior permission or condonation within fifteen days, so no-confidence, censure and cut motions are decided before the debate.

2. The guillotine: outstanding Demands put and voted without discussion, and rule 270(a) forbids a committee report to suggest anything of the nature of cut motions.

3. Art 113(3): no demand except on the recommendation of the President; the House may only assent, refuse or reduce, and art 114(2) bars amendments varying amount or destination.

4. Rules 270(b) and 277: committee scrutiny is optional and advisory, and the term is one year.

5. Arts 123 and 213: ordinances, with the same force and effect as an Act, made when the Houses are not in session, ceasing six weeks after reassembly. Contrast the affirmative-resolution rule, which does not operate until approved.

The verdict: strong where it operates by exposure, weak where it operates by decision.

Test yourself

1. Why is legislative control weaker in operation than in design? For five structural reasons. The Tenth Schedule disqualifies a member who votes or abstains contrary to a direction of his party without prior permission or condonation within fifteen days, so that a motion of no-confidence, a censure motion and a cut motion are all decided before the debate begins. The guillotine allows the Demands for Grants outstanding when the allotted days expire to be put and voted without discussion, and rule 270(a) forbids a committee's report on Demands to suggest anything in the nature of cut motions. Article 113(3) reserves the initiative in financial matters to the executive, so the House may assent, refuse or reduce but may not increase or propose, and article 114(2) forbids any amendment to the Appropriation Bill varying the amount or destination of a grant. Committee scrutiny is optional under rule 270(b), advisory under rule 277 and annual in its term. And articles 123 and 213 allow the executive to legislate by ordinance, with the same force and effect as an Act, at a time when the Houses are not in session.

2. Is the Tenth Schedule simply a defect in the system? No, and an answer that treats it as one is incomplete. It was enacted against defections which had brought Governments down and made them, often for money, and it has given India a stability its parliamentary practice previously lacked; articles 75(1A) and (1B), inserted in 2003, were directed at connected mischiefs, capping the size of the Council of Ministers and disqualifying a defector from ministerial office. The cost is that the ultimate instrument of legislative control, a division in which members decide whether they still support the Government, is exercised by parties rather than by members, so that no division is ever in doubt. The proper way to state the point is as a trade-off between stability and individual responsibility, which is a political choice rather than a drafting defect capable of being repaired.

3. Why does the ordinance power belong in a chapter on the weakness of legislative control? Because every device in this label operates either on a Bill before the House or on a Government answerable to it while it sits, and an ordinance is law made when the House is not sitting. Article 123(1) empowers the President, at any time except when both Houses are in session, on being satisfied that circumstances exist which render it necessary for him to take immediate action, to promulgate such Ordinances as the circumstances appear to him to require, and article 123(2) gives an Ordinance the same force and effect as an Act of Parliament; article 213 makes corresponding provision for a Governor. The safeguards are real, in that the power arises only when the Houses are not in session, the Ordinance must be laid and ceases to operate six weeks after reassembly or earlier on disapproving resolutions, and it may be withdrawn. But the satisfaction is the executive's own, and the device permits legislating first and seeking approval afterwards. The contrast with the affirmative-resolution laying procedure is instructive: such a rule does not operate until the House approves, while an ordinance operates until the House disapproves.

4. What is the honest verdict on legislative control in India? That it is strong where it operates by exposure and weak where it operates by decision. Every device which ends in a division is settled by the Tenth Schedule before the debate begins, so the cut motion and the motion of no-confidence are instruments held in reserve rather than in use. Every device which ends in a record works: the question answered on the floor and printed, the committee report which a court may read and no one may impeach, the audit paragraph established by an officer removable only as a Judge of the Supreme Court, and the laying requirement policed by a committee. The effective instruments in this paper are therefore the question, the committee report, the audit paragraph and the laying requirement; and the reforms that follow are to make the reference of Bills to committees the rule, to give every committee the Public Accounts Committee's action taken procedure by statute, to lengthen or stagger committee terms, to place more instruments under the affirmative-resolution procedure so that inertia kills rather than preserves, to limit the guillotine, and to give committees professional staff.